Ferreira v. Butler, 531 S.W.3d 337 (Tex. App.—Houston [14th Dist.] 2017, vacated & remanded).
Executrix of Decedent’s estate attempted to probate
the will of Decedent’s Wife nine year’s after her death. Wife’s children
from a previous relationship contested the application asserting that it
was too late to probate Wife’s will as more than four years had elapsed
since Wife’s death. Executrix responded that the four year rule did not
apply under Estates Code § 256.003 because she was not in default; she
applied to probate the will a mere one month after discovering the will.
The trial court denied probate and Executrix appealed.
The appellate court affirmed. The court explained
that Executrix’s timely conduct was irrelevant. The important issue is
whether Decedent acted timely which he clearly did not. The court
explained that Executrix, both in her personal capacity and in her
representative capacity, could have no greater right than Decedent had
when he died.
The court did, however, recognize that there is a
split in authority in Texas regarding whether a default by a will
beneficiary is attributed to that beneficiary’s successors in interest
(heirs or will beneficiaries). Compare In re Estate of Campbell,
343 S.W.3d 899, 905-08 (Tex. App.—Amarillo 2011, no pet.) (default of
beneficiary did not bar successors in interest) with Schindler v.
Schindler, 119 S.W.3d 923, 929 (Tex. App.—Dallas 2003, pet. denied)
(default of beneficiary barred successors in interest). In determining
which position to follow, the court followed Faris v. Faris, 138
S.W.2d 830 (Tex. Civ. App.—Dallas 1940, writ ref’d), which barred
successors in interest “because the Supreme Court of Texas adopted that
opinion and judgment by refusing a writ of error.” Ferreira at
343.
Moral: Probate a will within four years of
the testator’s death.